Opinion: Beyond past errors

That the government of Pakistan failed to make its case against provisional measures at the International Court of Justice hearing on Kulbhushan Jadhav is now accepted in most political and legal circles. A number of omissions and faux-pas, especially but not solely by the Foreign Office, led to our dismal performance at the ICJ. Four glaring errors stand out.

One, the failure to register the 2008 Bilateral Agreement on Consular Access between Pakistan and India with the UN Secretariat in accordance with Article 102 of the UN Charter led to its inadmissibility as a cogent argument before the court. That the government rushed to register the 2008 Agreement three days after the hearing (on May 18, 2017) was recognition of this failure. It is shocking to find that the Foreign Office was either unaware or entirely negligent in failing to register this 2008 Agreement immediately after its signing. Such a lapse reflects the persistent non-serious approach of the Foreign Office and our successive governments towards our international legal obligations. This lackadaisical approach is also illustrated by the fact that the Foreign Office has only one legal adviser (who has been found wanting by both authors of this piece on occasion) in contrast to a robust international law team within the Indian Ministry of External Affairs.

Two, our legal team was weak, with one QC who specialises in international commercial law and arbitration, and a young barrister inexperienced in the field of international law, from the attorney general’s Office. To make matters worse, their lack of expertise in this particular area led to their inability to utilise the full 90 minutes allotted to them. Even a new lawyer in the field is well aware that each minute given to him/her to speak before the court is given for a reason. Time matters, and when 90 minutes had been given, the ICJ had granted this time for a particular reason. To not make use of every second of that time to present our case was an arrogant blunder on the part of our counsel who couldn’t distinguish between a “rant” and extensively laying out Pakistan’s position and case.

Three, there was poorly devised strategy, either on the part of the Foreign Office or the counsel itself, or perhaps both, as to how to proceed before the court. It was abundantly clear that our legal counsel was arguing both on jurisdiction and merits of the case at a stage when it should only have argued on jurisdiction. Our focus should have solely been on why the ICJ does not have the jurisdiction to grant provisional measures in this case, and how the core Indian contention pertaining to “urgency” was mere fabrication to invoke the jurisdiction of the court.

Four, showing a lack of overall competence and preparation was the fact that Pakistan failed to appoint an ad-hoc judge. While this does not affect the legal standing or merits of Pakistan’s case, the political ramifications of the same have been disastrous for Pakistan. At the end of the day, the reality is that the case has a crucial political dimension, as do many cases before the ICJ. This omission reflected not only our legal shortcomings but also our political ineptitude.

So what should be our way forward at the next hearing in June? One legal gap has been closed through registration of the 2008 Agreement, so it has validity before the court. In fact, now that it has been registered with the UN Secretariat, the 2008 Agreement lends great strength to Pakistan’s argument that the court does not have jurisdiction to hear the case, owing to the fact that consular access is restricted by virtue of this agreement, voluntarily accepted by India, through not only signature but state practice. Moreover, the Vienna Convention on the Law of Treaties 1969, in Article 26, clearly provides that “every treaty in force is binding upon the parties to it and must be performed by them in good faith”. This is the key international law principle of pacta sunt servanda.

Further, under Article 30(3) of the 1969 convention, it is stipulated: “When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty is not terminated or suspended in operation under article 59, the earlier treaty applies only to the extent that its provisions are compatible with those of the later treaty”. Pakistan and India voluntarily consented to the 2008 Bilateral Agreement, which is later in time than the Vienna Convention on Consular Relations 1963, which India has utilised as a basis for invocation of the court’s jurisdiction.

Clause VI of the 2008 Bilateral Agreement allows for denial of consular access, by either Pakistan or India, on grounds of national security. Considering the fact that Jadhav is a self-confessed spy, convicted of espionage and terrorism activities, it is within Pakistan’s national security interests to ensure that India is not granted consular access to him. In fact, even the Vienna Convention 1963 cannot apply to granting spies/enemy aliens consular access.

Another argument that Pakistan should use before the court, to challenge its jurisdiction in the case, stems from the Geneva Convention (IV) relative to the protection of civilian persons during war time (1949). While Pakistan and India are not in a declared state of war against one another, we are engulfed in a cold war, with periods of active and direct hostilities, be it in the form of firing at the LoC or otherwise.

Article 5 of the 1949 convention provides: “Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State”.

In fact, if the aforestated argument is put forward before the court, and in the event that the case proceeds to the merits stage, the denial of consular access to Jadhav by Pakistan is well within the confines of international law.

It is now a moot issue whether we should have or should not have gone to the ICJ, in response to India’s claim. Now that we have gone before the ICJ, we need to ensure that we are well prepared so that we can present our exceptionally strong case effectively before the court at the stage of preliminary objections. Further, we should reconstitute our legal team by utilising our own international law experts rather than a Qatar-based QC, and appoint an ad-hoc judge.

Lastly, at the next stage of the proceedings, ie jurisdiction stage, we should focus solely only on why the ICJ does not have jurisdiction to hear the case, rather than arguing on the front of merits as well, as we did at the preliminary objections stage. If we lose what is a clear-winning case for Pakistan, the responsibility falls solely on our shoulders.